Valucard Nigeria Plc V. Registrar Trademarks & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Lead Ruling)

This is an application filed on the 1st day of March, 2012 in which the 2nd Respondent/Applicant prayed for the following Orders:-

“An Order of this Honourable Court striking out Ground 1 of the Appellant/Respondent’s Notice of Appeal dated and filed on 15th day of December, 2010 for being defective and incompetent.”

The Ground for the application is that the complaint in Ground 1 of the said Appellant/Respondent’s Notice of Appeal did not arise from the Ruling of the Lower Court dated 10th day of December, 2010, and therefore cannot be said to disclose any reasonable ground of appeal, consequently the said Ground 1 is incompetent.

The application is supported by an affidavit of 8 paragraphs pertinent paragraphs of which are 3 to 7, reproduced as follows:-

“(3) That we have filed a Notice of Preliminary Objection dated 9th of March, 2011 challenging Ground 1 of the Appellant/Respondent’s Notice of Appeal dated and filed on 15th day of December, 2010 for being incompetent. The said Preliminary Objection was argued in the 2nd Respondent/Applicant’s Brief of Argument dated 9th of March, 2011 and filed on the 15th of March, 2011.

(4) That the present Motion on Notice became necessary in the light of recent authorities coming to our knowledge.

(5) That I have seen the Ruling of the Court below dated 10th day of December, 2010.

(6) That I have also seen the Notice of Appeal filed by the Appellant/Respondent in this Appeal and I verily believe that Ground 1 of the Appellant/Respondent’s Notice of Appeal dated and filed on 15th day of December, 2010 is incompetent for the reasons stated on the 2nd Respondent/Applicant’s Motion paper.

(7) That it is in the interest of justice that the Ground identified above be accordingly struck out for being in flagrant violation of the law and Rules of this Honourable Court.”

In opposition to the Application, the learned Counsel for the Appellant/Respondent filed a Counter Affidavit of 10 paragraphs, pertinent paragraphs of which are 2 to 6 and 9 reproduced as follows:-

(2) That the 2nd Respondent/Applicant filed a Notice of Preliminary Objection dated 9.3.2011 challenging the competence of Ground 1 of the Notice of Appeal.

(3) That the 2nd Respondent argued the said Notice of Preliminary Objection in its 2nd Respondent’s Brief of Argument dated 9.3.2011.

(4) That the Appellant/Respondent responded to the Notice of Preliminary Objection by filing a Reply Brief thereof dated 29.3.2011.